T 0004/98 (Liposome Compositions/SEQUUS) vom 09.08.2001

1. In accordance with the principles in G 5/83 and subsequent case law, the concept of second or further medical use can only be applied to claims to the use of substances or compositions (here, liposome compositions) for the preparation of a medicament intended for use in a method referred to in Article 52(4) EPC. (See Reasons, paragraph 8.1)

2. The concept of "therapy" or "therapeutic application" includes treatment of a particular illness or disease with a specified chemical substance or composition in a specified human or animal subject in need of such treatment. In the absence of the identification of at least (i) the illness or disease to be treated or the ailment to be cured or (ii) the nature of the therapeutic compound used for treating or curing the disease or (iii) the subject to be treated, a mere process feature cannot be construed as specifying a particular method of treatment or therapeutic application within the meaning of Article 52 (4) EPC. (See Reasons, paragraphs 8.1 and 8.2)

3. Unless a proven substantial Procedural violation relating to one or more issues in the first instance proceedings (here, violations alleged in relation to two issues, neither established) is so serious that the case must be remitted to the first instance with the effect that the whole decision under appeal is overruled, reimbursement of the appeal fee would not be equitable under rule 67 EPC if the appellant had no choice but tu appeal on other issues unaffected by an procedural irregularity (here, seven such issues). thus giving the appellant a "fee-free" appeal on such issues.(See Reasons, paragraph 13.3)